OSNEXUS END USER LICENSE AGREEMENT (EULA)
This is a legal agreement ('AGREEMENT') between you, the Licensed User, and OSNEXUS Corporation. Your location of receipt of this product or feature release (both hereinafter 'PRODUCT') or technical support (hereinafter 'SUPPORT') determines the providing entity hereunder (the applicable entity is hereinafter referred to as 'OSNEXUS'). OSNEXUS Corporation, a Washington corporation, licenses this PRODUCT and provides SUPPORT worldwide. BY INSTALLING AND/OR USING THE PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE PRODUCT.
1. GRANT OF LICENSE RIGHTS. This PRODUCT contains software that provides storage system services on a physical or virtual server. This PRODUCT is activated by license keys ('License Keys'). This PRODUCT is licensed for a specific quantity of computer storage, and a specific term. You may use the PRODUCT only on Licensed Servers and only in accordance with the accompanying SOFTWARE user documentation. You will maintain the copyright notice and any other notices that appear on the PRODUCT. OSNEXUS grants to you a worldwide, nonexclusive right to use the PRODUCT on Licensed Servers as follows:
a. Subscription License. If the SOFTWARE is 'Subscription SOFTWARE,' your license is for the agreed upon term and includes the right to receive Updates for that period. For the purposes of this AGREEMENT, an Update shall mean a generally available release of the same SOFTWARE. To extend the Subscription License, you must renew the subscription and install an additional License Key prior to the expiration of the current Subscription. Note that if a new License is not renewed and installed, Subscription SOFTWARE disables itself upon the expiration of the License period.
b. QuantaStor Community Edition. If this PRODUCT is QuantaStor Community Edition, this PRODUCT is licensed for non-commercial use only with up to 20TB of storage. Licenses for other OSNEXUS products or other editions of the same PRODUCT may not be used to increase the allowable use for the PRODUCT. ‘QuantaStor Community Edition SOFTWARE,’ is offered with NO RIGHT TO RECEIVE SUPPORT, UPGRADES, OR WARRANTY OR INFRINGEMENT INDEMNIFICATION.
c. Not For Resale. If this SOFTWARE is 'Not For Resale SOFTWARE,' notwithstanding any term to the contrary in this AGREEMENT, your License permits use only if you are a current OSNEXUS authorized distributor, reseller or MSP and then only for demonstration, test, or evaluation purposes in support of your customers. Note that Not for Resale SOFTWARE disables itself on the 'time-out' date identified in the SOFTWARE readme or documentation.
d. Trial Edition. If this SOFTWARE is 'Trial Edition SOFTWARE,' notwithstanding any term to the contrary in this AGREEMENT, your License permits use only for your internal demonstration, test, or evaluation purposes. Note that Trial Edition SOFTWARE disables itself on the 'time-out' date identified in the SOFTWARE readme or documentation.
e. Developers' Edition. If this SOFTWARE is 'Developers' Edition SOFTWARE,' notwithstanding any term to the contrary in this AGREEMENT, your License permits use only for your internal development of product(s) to operate in conjunction with the SOFTWARE. You receive no License hereunder to incorporate the SOFTWARE or any portion thereof in your own product(s).
f. Internal Use Only. If this SOFTWARE is 'Internal Use Only SOFTWARE,' notwithstanding any term to the contrary in this AGREEMENT, your License permits use only if you are a current OSNEXUS authorized distributor, reseller, MSP, employee or contractor and then only for your own internal business use. Note that Internal Use Only SOFTWARE disables itself on the 'time-out' date identified in the SOFTWARE readme or documentation.
g. Archive Copy. You may make one (1) copy of the SOFTWARE in machine-readable form solely for backup purposes, provided that you reproduce all proprietary notices on the copy.
2. SUBSCRIPTION RIGHTS. Your subscription for Subscription SOFTWARE shall begin on the date the Licenses Keys are delivered and shall expire at the end of the subscription term (the 'Subscription Term'), if not renewed through the purchase of annual renewals. You may transfer valid Subscription Software and, in so doing, will use Best Efforts to notify OSNEXUS Support. During the initial or a renewal Subscription Term, OSNEXUS may, from time to time, generally make Updates available for licensing to the public. Upon general availability of Updates during the Subscription Term, OSNEXUS shall provide you with Updates for covered Subscriptions. Any such Updates so delivered to you shall be considered SOFTWARE under the terms of this AGREEMENT, except they are not covered by the Limited Warranty applicable to SOFTWARE, to the extent permitted by applicable law. Subscription renewals may be purchased for the SOFTWARE until it is no longer offered in accordance with the OSNEXUS PRODUCT Support Lifecycle Policy posted at www.osnexus.com. You acknowledge that OSNEXUS may develop and market new or different computer programs or editions of the SOFTWARE that use portions of the SOFTWARE and that perform all or part of the functions performed by the SOFTWARE. Nothing contained in this AGREEMENT shall give you any rights with respect to such new or different computer programs or editions. You also acknowledge that OSNEXUS is not obligated under this AGREEMENT to make any Updates available to the public. Any deliveries of Updates shall be Ex-works OSNEXUS (Incoterms 2000).
3. UPGRADE RIGHTS. Your purchase of Subscription SOFTWARE allows you to perform MAJOR REV UPGRADES and MINOR REV UPGRADES per Licensed Server, provided SOFTWARE remains under a valid Subscription period. A MAJOR REV UPGRADE is defined as improvements to SOFTWARE such that its version number increases by a whole digit, e.g. ‘v2.xx’ to ‘v.3.xx’. A MINOR REV UPGRADE is defined as improvements to SOFTWARE such that its version number increases as a subset of a whole digit, e.g. ‘v3.10’ to ‘v3.11”.3.
4. SUPPORT. SUPPORT is co-terminus with Subscription SOFTWARE term and includes various combinations of Incidents, technical contacts, coverage hours, geographic coverage areas, technical relationship management coverage, and infrastructure assessment options. An 'Incident' is defined as a single SUPPORT issue and reasonable effort(s) needed to resolve it. An Incident may require multiple telephone calls and offline research to achieve final resolution. The Incident severity will determine the response levels for the SOFTWARE. Unused Incidents, where applicable, expire at the end of each annual term. SUPPORT will be provided remotely from OSNEXUS to your locations. Where on- site visits are mutually agreed, you will be billed for reasonable travel and living expenses in accordance with your travel policy. OSNEXUS performance is predicated upon the following responsibilities being fulfilled by you:
i. you will designate a Customer Support Manager ('CSM') who will be the primary administrative contact;
ii. you will designate Named Contacts (including a CSM), who are OSNEXUS certified, and each Named Contact (excluding CSM) will be supplied with an individual service ID number for contacting SUPPORT;
iii. you agree to perform reasonable problem determination activities and to perform reasonable problem resolution activities as suggested by OSNEXUS. You agree to cooperate with such requests;
iv. you are responsible for implementing procedures necessary to safeguard the integrity and security of SOFTWARE and data from unauthorized access and for reconstructing any lost or altered files resulting from catastrophic failures;
v. you are responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware at your site and providing OSNEXUS with access to your facilities as required to operate the SOFTWARE and permitting OSNEXUS to perform the service called for by this AGREEMENT; and
vi. you are required to implement all currently available and applicable hotfixes, hotfix rollup packs, and service packs or their equivalent to the SOFTWARE in a timely manner.
OSNEXUS is not required to provide any SUPPORT relating to problems arising out of:
i. your customization to the operating system or environment that adversely affects the SOFTWARE;
ii. any alterations of or additions to the SOFTWARE performed by parties other than OSNEXUS;
iii. use of the Software other than as authorized in the Agreement or as provided in the documentation for the Software;
iv. use of the SOFTWARE on a processor and peripherals other than the processor and peripherals for which such SOFTWARE was designed and licensed for use on
v. damage to the machine on which the Software is installed;
vi. customer’s continued failure to use the Software without reference to the documentation;
vii. third- party products not expressly supported by OSNEXUS and described in the documentation;
viii. conflicts related to replacing or installing hardware, drivers, and software that are not supported by OSNEXUS and described in its HCL documentation; or
ix. SOFTWARE that has reached End-of-Life.
In situations where OSNEXUS cannot provide a satisfactory resolution to your critical problem through normal SUPPORT methods, OSNEXUS may engage its product development team to create a private fix. Private fixes are designed to address your specific situation and may not be distributed by you outside your organization without written consent from OSNEXUS.
OSNEXUS retains all right, title, and interest in and to all private fixes. Any hotfixes or private fixes are not SOFTWARE under the terms of this AGREEMENT and they are not covered by the Limited Warranty or Infringement Indemnification applicable to SOFTWARE, to the extent permitted by applicable law. With respect to infrastructure assessments or other consulting services, all intellectual property rights in all reports, preexisting works and derivative works of such preexisting works, as well as installation scripts and other deliverables and developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the assessment are and shall remain the sole and absolute property of OSNEXUS, subject to a worldwide, nonexclusive License to you for internal use.
5. DESCRIPTION OF OTHER RIGHTS, LIMITATIONS, AND OBLIGATIONS. Unless expressly permitted by applicable law, you may not transfer, rent, timeshare or lease the SOFTWARE. If you purchased Subscriptions for the SOFTWARE to replace other OSNEXUS Subscriptions for other OSNEXUS SOFTWARE and such replacement is a condition of the transaction, you agree to destroy those other OSNEXUS Licenses and retain no copies after installation of the new Licenses and SOFTWARE. You shall provide the serial numbers of such replaced Licenses and corresponding replacement Licenses to the reseller or MSP, and upon request, directly to OSNEXUS for license tracking purposes. Except as specifically licensed herein, you may not modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy (except for backup as permitted above) the SOFTWARE, except to the extent such foregoing restriction is expressly prohibited by applicable law. You may not remove any proprietary notices, labels, or marks on any SOFTWARE. To the extent permitted by applicable law, you agree to allow OSNEXUS to audit your compliance with the terms of this AGREEMENT upon prior written notice during normal business hours. Notwithstanding the foregoing, this AGREEMENT shall not prevent or restrict you from exercising additional or different rights to any free, open source code, documentation and materials contained in or provided with the SOFTWARE in accordance with the applicable free, open source license for such code, documentation, and materials. YOU MAY NOT USE, COPY, MODIFY, OR TRANSFER THE SOFTWARE OR ANY COPY IN WHOLE OR IN PART, OR GRANT ANY RIGHTS IN THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. ALL RIGHTS NOT EXPRESSLY GRANTED ARE RESERVED BY OSNEXUS OR ITS SUPPLIERS. You hereby agree, that to the extent that any applicable mandatory laws (such as, for example, national laws implementing EC Directive 91/250 on the Legal Protection of Computer Programs) give you the right to perform any of the aforementioned activities without the consent of OSNEXUS to gain certain information about the SOFTWARE, before you exercise any such rights, you shall first request such information from OSNEXUS in writing detailing the purpose for which you need the information. Only if and after OSNEXUS, at its sole discretion, partly or completely denies your request, shall you exercise your statutory rights.
6. INFRINGEMENT INDEMNIFICATION. OSNEXUS shall indemnify and defend, or at its option, settle any claim, suit, or proceeding brought against you based on an allegation that the SOFTWARE (excluding Open Source Software and QuantaStor, Community Edition) infringes upon any patent or copyright of any third party ('Infringement Claim'), provided you promptly notify OSNEXUS in writing of your notification or discovery of an Infringement Claim such that OSNEXUS is not prejudiced by any delay in such notification. For purposes of this Section 5, 'Open Source Software' means software distributed by OSNEXUS under an open source licensing model (that is, the GNU General Public License or a license similar to those approved by the Open Source Initiative). OSNEXUS will have sole control over the defense or settlement of any Infringement Claim and you will provide reasonable assistance in the defense of the same. Following notice of an Infringement Claim or if OSNEXUS believes such a claim is likely, OSNEXUS may at its sole expense and option:
i. procure for you the right to continue to use the alleged infringing SOFTWARE;
ii. replace or modify the SOFTWARE to make it non-infringing; or
iii. accept return of the SOFTWARE and provide you with a refund as appropriate. OSNEXUS assumes no liability for any Infringement Claims or allegations of infringement based on:
a. your use of any SOFTWARE after notice that you should cease use of the same due to an Infringement Claim;
b. any modification of the SOFTWARE by you or at your direction; or
c. your combination of SOFTWARE with other programs, data, hardware, or other materials, if such Infringement Claim would have been avoided by the use of the SOFTWARE alone. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
7. LIMITED WARRANTY AND DISCLAIMER. OSNEXUS warrants that for a period of ninety (90) days from the date of delivery of the SOFTWARE (excluding QuantaStor Community Edition) to you, the SOFTWARE will perform substantially in accordance with the OSNEXUS PRODUCT documentation published by OSNEXUS and included with the PRODUCT. OSNEXUS and its suppliers’ entire liability and your exclusive remedy under this warranty (which is subject to you returning the SOFTWARE to OSNEXUS or an authorized reseller or MSP) will be, at the sole option of OSNEXUS and subject to applicable law, to replace the media and/or SOFTWARE or to refund the purchase price and terminate this AGREEMENT. OSNEXUS will provide the SUPPORT requested by you in a professional and workmanlike manner, but OSNEXUS cannot guarantee that every question or problem raised by you will be resolved or resolved in a certain amount of time.
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTY FOR SOFTWARE, OSNEXUS AND ITS SUPPLIERS MAKE AND YOU RECEIVE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; AND OSNEXUS AND ITS SUPPLIERS SPECIFICALLY DISCLAIM WITH RESPECT TO SOFTWARE, UPDATES, SUBSCRIPTIONS, AND SUPPORT ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, LACK OF VIRUSES, BUGS, OR ERRORS, AND ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU ASSUME THE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND HARDWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE AND HARDWARE.
8. PROPRIETARY RIGHTS. No title to or ownership of the SOFTWARE is transferred to you. OSNEXUS and/or its licensors own and retain all title and ownership of all intellectual property rights in and to SOFTWARE, including any adaptations or copies. You acquire only a limited License to use the SOFTWARE.
9. EXPORT RESTRICTION. You agree that you will not export, re-export, or import the SOFTWARE in any form without the appropriate government licenses. You understand that under no circumstances may the SOFTWARE be exported to any country subject to U.S. embargo or to U.S.-designated denied persons or prohibited entities or U.S. specially designated nationals.
10. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER OSNEXUS NOR ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS ARISING FROM YOUR USE OF THE SOFTWARE OR SUPPORT, OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; OR THE USE OF THE SOFTWARE OR SUPPORT, REFERENCE MATERIALS, OR ACCOMPANYING DOCUMENTATION; OR YOUR EXPORTATION, REEXPORTATION, OR IMPORTATION OF THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF OSNEXUS, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF OSNEXUS, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS EXCEED THE AMOUNT PAID FOR THE SOFTWARE OR SUPPORT AT ISSUE. YOU ACKNOWLEDGE THAT THE LICENSE OR SUPPORT FEE REFLECTS THIS ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. For purposes of this AGREEMENT, the term 'OSNEXUS AFFILIATE' shall mean any legal entity fifty percent (50%) or more of the voting interests in which are owned directly or indirectly by OSNEXUS, Inc. Affiliates, suppliers, and authorized distributors are intended to be third party beneficiaries of this AGREEMENT.
11. TERMINATION. This AGREEMENT is effective until terminated. You may terminate this AGREEMENT at any time by removing the SOFTWARE from your computers and destroying all copies and providing written notice to OSNEXUS with the serial numbers of the terminated licenses. OSNEXUS may terminate this AGREEMENT at any time for your breach of this AGREEMENT. Unauthorized copying of the SOFTWARE or the accompanying documentation or otherwise failing to comply with the license grant of this AGREEMENT will result in automatic termination of this AGREEMENT and will make available to OSNEXUS all other legal remedies. You agree and acknowledge that your material breach of this AGREEMENT shall cause OSNEXUS irreparable harm for which monetary damages alone would be inadequate and that, to the extent permitted by applicable law, OSNEXUS shall be entitled to injunctive or equitable relief without the need for posting a bond. Upon termination of this AGREEMENT, the License granted herein will terminate and you must immediately destroy the SOFTWARE and accompanying documentation, and all backup copies thereof.
12. U.S. GOVERNMENT END-USERS. If you are a U.S. Government agency, in accordance with Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)), you hereby acknowledge that the SOFTWARE constitutes 'Commercial Computer Software' and that the use, duplication, and disclosure of the SOFTWARE by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this standard commercial license AGREEMENT. In the event that, for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, you hereby acknowledge that the Government's right to use, duplicate, or disclose the SOFTWARE are 'Restricted Rights' as defined in 48 CFR Section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable. Manufacturer is OSNEXUS Corporation, 11711 SE 8th Street, Suite 305, Bellevue, Washington 98005 USA.
13. AUTHORIZED DISTRIBUTORS, MSP's AND RESELLERS. OSNEXUS authorized distributors, MSP's and resellers do not have the right to make modifications to this AGREEMENT or to make any additional representations, commitments, or warranties binding on OSNEXUS.
14. CHOICE OF LAW AND VENUE. If provider is OSNEXUS Corporation, this AGREEMENT will be governed by the laws of the State of Washington without reference to conflict of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods, and in any dispute arising out of this AGREEMENT, you consent to the exclusive personal jurisdiction and venue in the State and Federal courts within King County, Washington. If any provision of this AGREEMENT is invalid or unenforceable under applicable law, it shall be to that extent deemed omitted and the remaining provisions will continue in full force and effect. To the extent a provision is deemed omitted, the parties agree to comply with the remaining terms of this AGREEMENT in a manner consistent with the original intent of the AGREEMENT.
15. HOW TO CONTACT OSNEXUS. Should you have any questions concerning this AGREEMENT or want to contact OSNEXUS for any reason, email OSNEXUS at firstname.lastname@example.org.
16. TRADEMARKS. OSNEXUS and QuantaStor are registered trademarks of OSNEXUS Corporation, in the U.S. and other countries.